Will TTC’s Drug Testing Policy Stand Up in Court?

Last month, the TTC suspended a driver for failing a random drug test. 300 employees have been tested since May.

It’s been three months since the Toronto Transit Commission (TTC) began administering random drug and alcohol tests on its employees. More than 300 employees have undergone the test in that time — eight have tested positive. Last month, the TTC suspended the first driver to fail a test, but disclosed neither the employee’s name nor the substance that tripped the test.

The TTC’s random drug testing policy has been controversial at every step. It was first proposed back in 2011, following an incident where a TTC bus driver rear-ended a truck. A passenger died in the accident, and police found marijuana on the driver’s person.

The driver refused to take a drug test, but the implication was clear. In the eyes of the public, drug use was the cause of the accident. Amid the uproar, the TTC responded with a widespread random drug and alcohol testing policy.

But not everyone supports this. The union representing thousands of employees, for one, was opposed from the start. The issue has been in the hands of an arbitrator since 2011.

The first major development in the case came in April 2017, when the Ontario Superior Court rejected the union’s application for an interlocutory injunction, which would have stopped the TTC from moving forward with the policy.

Many outlets reported this as the court’s approval of the policy. In fact, the court only approved of the TTC implementing the policy while the case is being litigated. It did not approve nor disapprove of the actual substance of the policy.

That’s for the arbitrator to decide. But don’t be surprised if it winds up in front of the court of appeal afterwards.

Random drug and alcohol testing is a thorny subject in Canada. Unlike many American states, Canadian courts have put very strict limits on when and how employers can test their employees. Testing is considered a significant affront to the dignity and privacy of employees, and addiction is viewed as a disability in the eyes of the law.

Two leading cases in this area are Stewart v. Elk Valley Coal Corporation and Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. In the Irving Pulp case, the company began testing 10% of its employees in safety-sensitive positions over the course of a year. A positive test would attract serious disciplinary action, including dismissal. The Supreme Court of Canada ruled against the employer, stating that an employer cannot unilaterally impose a mandatory random testing program unless it can prove it’s necessary, such as evidence of a general problem with substance abuse in the workplace. Simply having a dangerous workplace is not justification alone for such a policy.

The Elk Valley Coal case is more recent, and confirms that employees can test employees in some circumstances. The employer in that case had a policy where any employee who was involved in an accident while under the influence of drugs or alcohol would be dismissed. However, if an employee felt they had an addiction issue, they were free to disclose it to the employer before an accident occurred and could get help without fear of reprisal. The court upheld this policy.

It’s not clear where the TTC’s policy fits into the law. On one hand, safety is a significant concern among its workforce, as they are responsible for the safety of millions of people, and their workplace spans the entire city of Toronto.

But can the commission prove the policy is necessary? There was the incident in 2011, but that was never conclusively proven to be the result of drug use, and a single incident may not justify infringing on employees’ privacy.